What is the age of consent?
The age of consent is the age at which a person can legally agree to sexual activity. Sexual activity is determined to be everything ranging from kissing and fondling to sexual intercourse.
With respect to sexual activity with someone older than the age of consent, meaningful consent is presumed. However, if there is no consent, the sexual activity is a criminal offence (regardless of age) and may incur harsh punishments under the Criminal Code of Canada — including mandatory minimum jail sentences.
The law is clear and generally well-understood but some notable exceptions are not so widely known.
Negation of presumption of consent
The presumption of consent may be negated if the person who engaged in sexual activity can be proven to lack capacity due to one of the following reasons:
- Developmental disability
What is the age of consent in Canada?
Under Canadian law, the age of consent is set at 16 across all provinces and territories — but there are some exceptions.
Until 2008, the age of consent was 14 for all “non-exploitive sexual activity”, an age that was set in 1890 and which took almost 120 years to change.
To help protect youth from sexual predators and to fight child sexual exploitation, the Government of Canada passed legislation in 2008 increasing the age of consent to 16 for all non-exploitive sexual activity.
“Non-exploitive sexual activity” is defined as sexual activity that does not include prostitution or pornography.
A 16- or 17-year-old cannot legally consent to any sexual activity in Canada if:
- Their sexual partner is in a position of trust or authority towards them, such as a coach or teacher
- The young person is dependent on their sexual partner, such as for care or support
- The relationship between the young person and their sexual partner is exploitive
We should. therefore, more accurately refer to a person needing to be at least 16 before they can consent to sexual activity. There are notable exceptions to the 16-year-old rule when there is a relationship of trust, authority or dependency or if the relationship is considered “exploitative”. In these cases, the age of consent may be raised to 18.
The following factors may be taken into account when determining if the relationship is exploitive:
- The young person’s age
- How the relationship developed (internet, secretly, etc.)
- The age difference between the young person and their partner
- Whether the older partner may have controlled or influenced the young person
There are also exceptions to the age of consent for sexual relationships between people who are close in age.
A 14-year-old can consent to sexual activity with someone who is less than five years older than them as long as there is no relationship of authority, trust or dependency.
A person aged 12 or 13 can even legally consent to sexual activity with another person who is less than two years older than them as long as there is no relationship of authority, trust or dependency.
This means that close-in-age sexual partners between the ages of 12-18 are unlikely to be prosecuted unless the two-year or five-year rules are broken and/or there is a relationship of authority, trust or dependency.
An 18-year-old boy could, therefore, legally engage in sexual activity with a 14-year-old girl but not if he’d agreed to look after her, support her and care for her well-being — in which case, it could be prosecuted as a criminal offence.
What criminal offences are associated with age of consent violations?
The Criminal Code covers many crimes involving sexual abuse and exploitation. These are not specific to age of consent laws and may be filed for other reasons but anyone who violates the age of consent could face the following types of charges:
- Sexual assault
- Aggravated sexual assault
- Trafficking in persons
- Non-consensual distribution of intimate images
Other laws in Canada specifically protect children from sexual offenders. The following are crimes sometimes associated with violations of the age of consent laws:
- Sexual interference
- Invitation to sexual touching
- Sexual exploitation
- Child pornography
- Luring a child
- Child prostitution
- Child sex tourism (aimed at Canadians who travel abroad and break the Canadian consent laws but are not prosecuted in the country where the alleged crime took place)
Penalties for age of consent violations in Canada
All crimes against children are treated extremely harshly by the Canadian justice system and when sexual assault or exploitation is involved, the punishments can be particularly severe. Tougher penalties were introduced relatively recently under the Child Predators Act.
Because of the wide range of crimes and the unique circumstances that surround each offence, it is difficult to be too general about penalties.
However, if a crime against a child is treated as an indictable offence, the maximum penalty is 14 years in jail — with a mandatory minimum of one year in jail.
Summary convictions will result in a maximum penalty of two years less a day in jail (mandatory minimum punishment of 90 days in jail).
Because the offence is committed against a child, note that mandatory sentences apply. Also note that with age of consent violations, the defendant cannot argue that the other person consented to the sexual activity if they were under the legal age of consent.
Other valid defences may, however, apply. It’s important to protect your rights and seek legal advice from an experienced criminal defence lawyer if you face charges relating to an age of consent violation.
Cory has represented individuals from all walks of life including lawyers, police officers, athletes, corporate executives, teachers, and everything in between. Cory believes in access to justice for every person charged with a criminal offence regardless of their economic background.